I'm having Bush v. Gore déjà vu. Late Wednesday, the Supreme Court blocked video streaming of the California gay marriage trial. In this unusual (unprecedented?) order, meddling in the governance of the lower courts, are all the hallmarks of the court's worst self-inflicted bruise. It's a smaller bruise this time around, granted. But still.
Let's count the parallels. In barring video of Perry v. Schwarzenegger, the court split 5-4, conservatives vs. liberals. The question addressed—whether the California district court properly amended its broadcasting rule—has nothing to do with ideological politics, on its face. But because the trial is about same-sex marriage, it's all about the politics roiling underneath. And as in Bush v. Gore, the majority reached out and grabbed this appeal when no one expected it to. There's a question about whether the court even has the authority to act. The majority claims to base its decision in legal technicalities and says its decision is limited to this case only. The opinion, signed by no one, downplays the significance of all of this.
Hmm. What did I miss? On the Volokh Conspiracy, Orin Kerr has déjà vu, too, and his own list of similarities.
The majority (in case you haven't guessed, Chief Justice Roberts and Justices Scalia, Thomas, Kennedy, and Alito) sounds cranky from the beginning, as Lyle Denniston at Scotusblog points out. The first paragraph of the order closes with a snap: "Courts enforce the requirement of procedural regularity on others, and must follow those requirements themselves." That's the official line throughout: This is all about procedural regularity. Never mind that the 9th Circuit, which makes the rules for the federal trial courts on the West Coast, had approved a pilot project in broadcasting and clearly has the authority to do so. Never mind that the majority's claim of a technical violation of rulemaking is perilously thin, no matter how many times it bandies about the phrase "likely violation of a federal statute."
The majority accuses Judge Walker, who is trying Perry, and the 9th Circuit of moving "in haste" to broadcast this particular trial. Held against the videotaping plan is Walker's statement that Perry was "an ideal candidate for consideration" when the 9th Circuit decided to experiment with video, in light of the intense public interest in the trial. This is not a legitimate rationale in the majority's view. Those crazy California judges. What was Walker smoking, making a trial of widespread public interest more accessible to the public?
The problem, the majority says, is that in his haste, Judge Walker changed a federal rule to allow for the broadcast, without giving sufficient notice to the parties and witnesses or enough opportunity for public comment. Ohhh, I thought when I read this, they've nailed him on a technicality. Except they haven't. Judge Walker told the parties he was considering videotaping back in September. And when he amended the rules of his court in late December, he did provide for notice and comment, between New Year's Eve and Jan. 8. Not enough time? Nobody knew to comment? Actually, the court received megabytes of comments! 138,542 pro and 32 con, to be precise. Yet in the majority's view, this is inadequate, even though the only standard the justices fish out for how much notice and comment suffices when a district court amends its own rules is the vague "appropriate."
Also, weirdly, all of this fuss is about Judge Walker's decision—approved by 9th Circuit Judge Alex Kozinski—to stream live video to five other courthouses across the country, while forbidding any rebroadcast. Judge Walker had planned to also post the video to YouTube with a time delay, but that process hadn't been sorted out yet (because of technical difficulties), so the YouTube idea isn't ready for review. The Supreme Court has surely killed it, but the formal disconnect means that the court came down from on high and interrupted its own busy week to block people from watching the gay marriage trial in five courthouses in San Francisco, Seattle, Portland, Brooklyn, and Pasadena. Really? What would have been the harm in as many press and interested observers who could have crammed into those courthouses watching a feed, when there are already hundreds of them at the trial? What's the Supreme Court afraid of—a love-in?